NOTES
CRIMINAL PROCEDURE: Search and Seizure-"Plane" View
Surveillance of the Curtilage in California v. Ciraolo
I. INTRODUCTION
The United States Supreme Court addressed the issue of aerial surveillance of the curtilage in California v. Ciraolo.' In lower court proceedings, the California Court of Appeal had reversed Ciraolo's Superior
Court conviction for marijuana cultivation on the grounds that the warrantless airplane flight by police over Ciraolo's backyard constituted an
unreasonable search.2 The Supreme Court conceded that Ciraolo probably
manifested a subjective expectation of privacy by constructing two fences
around his backyard3; however, the Court found that his expectation was
unreasonable by societal standards and did not merit fourth amendment
protection.'
This Note examines the rationale of Ciraolo. In addition, this Note
focuses on the Court's treatment of the reasonable expectation of privacy
test and of the curtilage doctrine.
II. STATEMENT OF THE CASE
In September, 1982, the Santa Clara, California, Police Department
received an anonymous telephone tip that marijuana was growing in
Ciraolo's backyard.' A ground-level investigation proved fruitless because
two fences surrounded the backyard. 6 Later the same day, investigating
officers flew over Ciraolo's house in a private airplane at an altitude of
one-thousand feet.' During the course of the flight, the officers identified
the plants growing in Ciraolo's backyard as marijuana plants.'
I. California v. Ciraolo, 106 S.Ct. 1809 (1986). Chief Justice Burger delivered the opinion of
the Court, joined by Justices White, Rehnquist, Stevens, and O'Connor, with Justices Powell,
Brennan, Marshall, and Blackmun dissenting.
2. People v. Ciraolo, 161 Cal.App.3d 1081, 208 Cal.Rptr. 93. (Cal.Ct.App. 1984).
3. Ciraolo, 106 S.Ct. at 1811-12.
4. Id. at 1813.
5. Id. at 1810. The exact words of the source were, "[clan see grass growing in yard, Stebbins
by Clark, S/B on left." Brief in opposition to petition for writ of certiorari at 2, California v. Ciraolo.
6. Ciraolo, 106 S.Ct. at 1810. The yard was enclosed by a six-foot tall outer fence and a tenfoot tall inner fence. The police officer was unable to see into the backyard from ground level. Id.
7. Id. Two Santa Clara police officers trained in marijuana identification were passengers in the
airplane. Id.
8. Id. The marijuana plants were eight to ten feet in height. The officers photographed the area
from the airplane with a 35mm camera. Id. at 1810-11.
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[Vol. 18
Based on the information obtained during the flight, the officers obtained
a search warrant for Ciraolo's property. 9 Upon execution of the search
warrant, the officers seized 73 marijuana plants and arrested Ciraolo. 0
The trial court denied Ciraolo's motion to suppress the evidence and
Ciraolo pleaded guilty to a charge of marijuana cultivation." The California Court of Appeal reversed the conviction, holding that the purposeful
observation carried out by the officers from the airplane violated Ciraolo's
reasonable expectation of privacy.' The California Supreme Court denied
the State's petition for review.' 3
The United States Supreme Court granted the State's petition for certiorari and reversed the California Court of Appeal. 4 The Supreme Court
held that Ciraolo's expectation of privacy was unreasonable by societal
standards 5 and, as a result, was not entitled to fourth amendment protection. 6
III. THE HISTORICAL BACKGROUND OF THE FOURTH AMENDMENT
In Ciraolo, the Court reached its conclusion through a fourth amendment analysis which looked to Ciraolo's reasonable expectation of privacy
from governmental intrusion.' 7 Before addressing the Supreme Court's
application of the fourth amendment, however, it is first necessary to
consider both the historical underpinnings of the amendment and the
historical development of fourth amendment jurisprudence.
The fourth amendment 8 is divided into two clauses: the first protects
9. Id. at 1811. The affidavit filed in support of the search warrant described both the anonymous
tip and the officers' observations. Id. The affidavit included an exhibit consisting of a photograph
of Ciraolo's backyard, house, and neighboring homes. Id.
10. Id. Ciraolo never disputed the fact that the plants were marijuana plants. Id.
II. Id.
12. Id. Ciraolo appealed his conviction in the Superior Court, contending the Superior Court
erred in failing to suppress the evidence seized during a search of his residence. People v. Ciraolo,
161 Cal.App.3d 1081, 1084, 208 Cal.Rptr. 93, 94 (Cal. Ct. App. 1984). The Court of Appeal held
that the aerial observation which supported the warrant violated the fourth amendment. Id. at 1090,
209 Cal.Rptr. at 98. That court also held that Ciraolo's backyard was within the curtilage of Ciraolo's
home and that the two fences manifested Ciraolo's reasonable expectation of privacy. Id. at 1089,
209 Cal.Rptr. at 97. See infra text accompanying notes 29-30 and 49-57 for discussion of the
curtilage doctrine.
13. Ciraolo, 106 S.Ct. at 1811.
14. Id. at 1811.
15. Id. at 1813.
16. Id. at 1813.
17. Id.at 1811.
18. The fourth amendment to the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.
U.S. CONST. amend. IV.
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CRIMINAL PROCEDURE
the basic right of citizens to be free from unreasonable searches and
seizures, and the second requires that warrants be particular and supported
by probable cause. 9 Although the amendment was the Framers' response
to general warrants issued by the Crown, 2" the amendment's protection
has been extended beyond the types of intrusion present at the time the
amendment was drafted. 2
Prior to 1967, the Court employed the concept of the "constitutionally
protected area" as a means of determining the extent of fourth amendment
protection from warrantless governmental intrusions.22 This analysis of
fourth amendment protection focused on the defendant's property interest
in a particular area and looked to whether the governmental activity
19. See, e.g., Payton v. New York, 445 U.S. 573, 584 (1980), for a discussion of the history
of the fourth amendment as well as some of the cases involved in fourth amendment jurisprudence.
20. Payton, 445 U.S. at 584-85. See also Boyd v. United States, 116 U.S. 616, 624-27 (1886).
During the American colonial period, revenue officers acted pursuant to writs of assistance which
enabled them to conduct discretionary searches of places upon suspicion of smuggling. Boyd, 116
U.S. at 625. The authors of the fourth amendment sought to prevent this abuse of power by adopting
the principles in Lord Camden's discussion of the general warrant in Entick v. Carrington and Three
Other King's Messengers, 19 Howell's State Trials 1029 (1765). Boyd, 116 U.S. at 626, 627.
In Entick, Lord Camden interpreted trespass law as prohibitive of every invasion of private property,
however minute. Entick, 19 Howell's State Trials at 1066. The Court held that a search pursuant to
a general warrant resulted in the self-compelled accusation of both the innocent and the guilty. Id.
at 1073. Camden held the warrant void and found against the messengers in trespass. Id.
21. Boyd, 116 U.S. at 630. Justice Bradley stated that the principles of Lord Camden's discussion
"affect the very essence of constitutional liberty and security." Id. Boyd rejected the notion that
Camden's principles reached only the specific examples of the case in which they were enunciated.
Rather, Boyd extended those principles to all invasions of privacy by the government or its employees.
Id. The holding in Boyd was to be applied to protect the "sanctity of a man's home and the privacies
of life." Id. See also supra text accompanying notes 18-20.
The present embodiment of that broad interpretation of the fourth amendment is that warrantless
searches and seizures are per se unreasonable "subject only to a few specifically established and
well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357 (1967).
22. Amsterdam, Perspectives on the Fourth Amendment, 58. MINN. L. REV. 349, 357 (1974).
Under this doctrine, fourth amendment protection was linked to the protection of property interests,
requiring a physical trespass by the government before fourth amendment protection would apply.
See Olmstead v. United States, 277 U.S. 438, 466 (1928) (interception of a telephone conversation
was not prohibited by the fourth amendment because no actual invasion of either suspect's house
took place).
The Court's focus on the constitutionally protected area continued in Goldman v. United States,
316 U.S. 129 (1942). In Goldman, the police used a detectaphone, placed against a partition wall,
to overhear a conversation in an adjoining room as well as the portions of telephone conversations
made from the room. Id. at 134. The Court found no search under the fourth amendment had taken
place because no physical penetration of the suspect's premises had occurred. Id. at 134-36.
In Silverman v. United States, 365 U.S. 505 (1961), government agents advanced a "spike mike"
along a party wall of an adjoining house until it touched a heating duct in the suspect's house. The
Court held that a physical intrusion into a constitutionally protected area without a warrant violated
the fourth amendment. Id. at 511-12. The petitioners in Silverman argued that the Court should
overrule the physical penetration limitation on fourth amendment protection. Id. at 508. The Court
acknowledged the improvements in surveillance technology, but declined to create a broader holding
than that necessary to fit the facts in Silverman. Id. at 508-09. Instead, the Court relied on the actual
intrusion by the officers as the grounds for reversing the petitioners' convictions. Id. at 512. The
Court stated, "We find no occasion to re-examine Goldman here, but we decline to go beyond it,
by even a fraction of an inch." Id.
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impinged upon those interests.23 For approximately 180 years, the Court
required a physical intrusion by the government before a person could
invoke fourth amendment protection.24 The defendant who invoked fourth
amendment protection tried to prove that the area in question was a
protected one and that the government intruded. The government attempted
to prove that the area was neither protected nor deserving of fourth
amendment protection.26
The Court's reliance on the concept of protected areas in fourth amendment cases required it to engage in a more meticulous examination of
the nature of the area in order to determine the scope of the amendment's
protection against unreasonable searches and seizures.27 The Court's
examination was based on the language of the amendment which expressly
created the right to be secure in one's home against unreasonable searches
and seizures.2 In defining protected areas, the Court extended the protection afforded the home to the area which surrounded it.29 The Court
used the term "curtilage" to describe the area immediately surrounding
the home. As an extension of the home, curtilage deserved the heightened
protection of the fourth amendment.' Conversely, the Court denied fourth
amendment protection to that portion of the property known as "open
fields", the property surrounding a home which was not within the curtilage. 3
The petitioners in Silverman v. United States32 pointed out the limited
utility of the protected area analysis when applied to situations where the
government employed technological means to eavesdrop without actual
intrusion." The protected area analysis evolved from the broader property
23. Amsterdam, supra note 22, at 357.
24. The time period is from the date of adoption up to the decision in Katz v. United States, 389
U.S. 347 (1967).
25. On occasion this resulted in the submission of competing lists of protected areas in briefs to
the Court. See, e.g., Katz v. United States, 389 U.S. 347 n.8 (1967).
26. Id.
27. Amsterdam, supra note 22, at 357.
28. U.S. CONST. amend. IV. The language of the amendment indicates the importance of the
home to the Framers at the time the Amendment was drafted. See Boyd v. United States, 116 U.S.
616, 630 (1886).
29. Hester v. United States, 265 U.S. 57, 59 (1924). Revenue officers arrested operators of an
illegal distillery without a warrant for either a search or an arrest. Id. at 58. The officers obtained
evidence in a field near the suspect's home. Id. Justice Holmes, writing for the Court, held that
fourth amendment protection did not extend to activities occurring in "open fields". Id. at 59, citing
4 W. Blackstone, Commentaries *223, 225. The pertinent part of the Commentaries is a discussion
of civil trespass to property in which the author considered the area immediately surrounding the
home, referred to as the curtilage, to be co-extensive with the home for the purpose of the privacy
interest. 4 W. Blackstone, Commentaries *223, 225, 226.
30. Hester, 265 U.S. at 59.
31. Id.
32. 365 U.S. 505 (1961).
33. Id. at 508-09. The petitioner in Silverman, seeking to invalidate the protected area analysis,
argued that the government could eavesdrop on a conversation in a room without a physical trespass;
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CRIMINAL PROCEDURE
law concept of trespass.34 It was, therefore, an inadequate analytic tool
in situations where the government obtained information from the home
or a home-like area without a physical intrusion. a5
In Katz v. United States, 36 the Court abandoned the property notion of
constitutionally protected areas and adopted an analysis centered on a
person's justifiable reliance on privacy in an area. 37 Katz was suspected
of violating interstate gambling laws .3 The police used a listening device
placed on the outside of a public telephone booth in order to hear Katz's
conversation within. 39 The Court, finding that a search and seizure had
occurred, held that the absence of physical intrusion had no constitutional
significance and reversed Katz's conviction.' The Court held that the
trespass limitation, derived from the constitutionally 4protected area analysis, could "no longer be regarded as controlling." '
Justice Harlan, in a concurring opinion, set out a two-part analysis
which has become the standard by which the Court has determined fourth
amendment protection."2 The analysis requires that a person manifest a
subjective expectation of privacy, 43 and that the person's expectation of
privacy be reasonable by societal standards."
Harlan observed that the home is normally the place where a person
expects privacy. 45 He qualified this statement, however, by saying that
in fact, the government could eavesdrop without even being near the room. Id. at 509. The petitioners
discussed devices such as parabolic microphones and techniques such as flooding a room with a
particular frequency of sound, as examples of the recent technological developments which would
enable the government to intrude without physical trespass. Id. The Court, however, limited its
inquiry and did not address the merits of the protected area analysis because the facts showed an
actual intrusion by the government agents. Id.
34. Hester, 265 U.S. at 59, citing 4 W. Blackstone, Commentaries *223, 225, 226.
35. See Silverman, 365 U.S. at 508-09.
36. 389 U.S. 347 (1967).
37. Id. at 353. The Court held that the fourth amendment protects people, "not simply areas",
from unreasonable searches and seizures. Id. Katz directed courts to look to the person's justifiable
reliance on privacy in a particular area in order to determine the extent of fourth amendment
protection. Id.
38. Id. at 348.
39. Id.
40. Id. at 353, 359.
41. Id. at 353. The Court explicitly addressed the holdings in Olmstead, 277 U.S. 438 and
Goldman, 316 U.S. 129 and found the trespass doctrine to be so "eroded" by later cases that it no
longer had dispositive value in fourth amendment analysis. Id.
42. Id. at 361 (Harlan, J., concurring). Harlan noted that although the fourth amendment protects
people, any inquiry to ascertain the extent of protection usually requires reference to a place. Id.
43. Id. This is the part of the analysis Harlan referred to as the "actual" expectation of privacy.
Id. Analysis under this part of the test looks generally/to the outward manifestations of a person's
expectation of privacy. Id.
44. Id. Under this part of the test, the Court has looked to the societal interest in protecting
certain areas from warrantless governmental intrusion on the grounds that "certain areas deserve the
most scrupulous protection." See, e.g., Oliver v. United States, 466 U.S. 170, 178 (1984) (no fourth
amendment protection to activities taking place in open fields because the activities occurring in that
area are not those usually associated with the home).
45. Katz, 389 U.S. at 359.
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even in the home, "objects, activities, or statements that a person exposes
to the 'plain view' of outsiders are not 'protected' because no intention
to keep them to himself has been exhibited."' It is important to note in
this context that Harlan was not using "plain view" as a term of art which
describes an exception to the warrant requirement. 47 Rather, plain view
in Katz was used in its simple and literal sense: that which is plainly
visible.48
Seventeen years after Katz, in Oliver v. United States,49 the Court
applied the reasonable expectation of privacy test to facts which raised
questions about the continued vitality of the curtilage/open fields distinction.5" In Oliver, the defendants had posted "No Trespassing" signs
around the fields in which they were growing marijuana. 5' Acting on an
anonymous tip, the police investigated and discovered marijuana plants.52
Finding no reasonable expectation of privacy, the Court reaffirmed the
traditional curtilage-open fields distinction.53 The Court held that the
distinction was based upon the explicit language of the fourth amendment's special protection afforded to people in their homes.5 4 Further, the
common law history of protecting the curtilage as if it were part of the
home provided sufficient grounds for maintaining the distinction after
Katz." Contrasting the special protection afforded the home with the kind
46. Id.
47. The plain view doctrine is based on the proposition that once police are lawfully in a position
to directly observe an object, the owner loses his privacy interest in that object. Illinois v. Andreas,
463 U.S. 765, 771 (1983). The plain view doctrine has been considered to be both an exception to
the presumptive unreasonableness of warrantless searches and seizures and as an extension of prior
fourth amendment justification for an officer's access to an object. See Coolidge v. New Hampshire,
403 U.S. 443, 466 (1971) (plurality opinion).
The first limitation on the plain view exception is that plain view alone is never enough to justify
warrantless seizure of evidence. Id. at 468. The second limitation is that the discovery of evidence
in plain view must be inadvertent. Id. at 469. But see Texas v. Brown, 460 U.S. 730, 739 (1983)
(plurality opinion). The Brown court did not reach the inadvertence issue, but held that a lawfully
positioned officer need only comply with a "common sense" standard in determining whether there
is probable cause to associate the property with criminal activity. Id. Justice Harlan's concurrence
in Katz predated all three opinions and should not be equated with the plain view doctrine developed
in later cases, which addressed exceptions to the warrant requirement of the fourth amendment.
48. Katz, 398 U.S. at 361.
49. 466 U.S. 170 (1984).
50. Id.
51. Id. at 170.
52. Id.
53. Id. at 176-78.
54. Id. The Oliver court referred to the Holmes quotation of the fourth amendment in Hester
which established the home as one of the areas deserving protection. Id., citing Hester, 265 U.S.
at 59.
55. Oliver, 466 U.S. at 180. The Court stated,"At common law the curtilage is the area to which
extends the intimate activity associated with the 'sanctity of a man's home and the privacies of
life'." Id. The Court did not expressly identify factors to be used in determining whether property
is within the curtilage, but pointed to cases in which the circuits had done so. Id.
In March, 1987, the Court set out four factors to be used in resolving curtilage questions: "the
proximity of the area claimed to be curtilage to the home, whether the area is included within an
Winter 1988]
CRIMINAL PROCEDURE
of activities which take place in open fields, the Court denied fourth
amendment protection where activities took place "out of doors" except
in the area "immediately surrounding the home." 56 The Court thus found
no reason to deny fourth amendment protection to the area within the
curtilage, stating that the curtilage
warrants the fourth amendment pro57
tections that attach to the home.
IV. DISCUSSION AND ANALYSIS
A. The Court's Reasoning in Californiav. Ciraolo
The Court applied existing fourth amendment jurisprudence to reach
its decision in Californiav. Ciraolo.5 s The Court first looked to Ciraolo's
reasonable expectation of privacy under the rule found in Justice Harlan's
concurring opinion in Katz.59 The Court inquired whether Ciraolo's expectation of privacy was reasonable by societal standards.'
Ciraolo asserted that his expectation was reasonable because the area
observed by the police was within the curtilage of his home, an area in
which activities deserve heightened protection."6 The Court acknowledged
the special protection afforded the areas within the curtilage, but refused
to accept Ciraolo's claim that this fact, per se, barred all police observation.62 The Court used United States v. Knotts 3 as support for the
enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken
by the resident to protect the area from observation by people passing by." United States v. Dunn,
107 S.Ct. 1134, 1139 (1987).
56. Oliver, 466 U.S. at 178.
57. Id. at 180.
58. 106 S.Ct. 1809 (1986).
59. Ciraolo, 106 S.Ct. at 1811. The Court did not address the "subjective expectation" part of
the Katz test because the state did not challenge the lower court finding that Ciraolo had manifested
such an expectation by constructing the two fences. Id. at 1811-12.
60. Id. at 1813.
61. Id.
62. Id.
63. 460 U.S. 276 (1983). In Knotts, the Court found no reasonable expectation of privacy on
the part of a suspected drug manufacturer who was the subject of police observation on a public
highway while driving in his car. Id. at 277. The suspect had purchased a drum of chloroform which
was to be used in the manufacture of illicit drugs. Id. at 277. The drum contained an electronic
beeper which would give officers the location of the drum should their visual surveillance fail. Id.
at 285. Through their visual and electronic surveillance the police ultimately learned the location of
the manufacturing site, a cabin in the woods of Wisconsin. Id. The Court held that the beeper
provided no information to the police in addition to what they could have obtained by observing the
suspect on his journey to the cabin. Id. Justice Rehnquist, writing for the Court, emphasized that
the beeper was not used to reveal information about the movement of the drum within the cabin or
to give information in any way that would not have been visible to the naked eye. Id. Thus, the
Court's holding in Knots condoned only the surveillance which took place without intrusion into
the interior of the cabin. Id.
In addition, the police in Knotts obtained a search warrant prior to entering the cabin, an area
deserving the most heightened fourth amendment protection. Id. at 279. Therefore, prior to their
entry into the cabin, the police had proved probable cause sufficient to justify issuance of a search
warrant. Id.
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proposition that merely taking measures to restrict certain views that a
policeman may have of an area does not preclude an officer's view of
the area from some other lawful vantage point.' By using Knotts in this
manner, the Ciraolomajority equated the outside observation of the cabin
in Knotts with the police observation of Ciraolo's backyard.6' The Ciraolo
Court found no significant difference between the observation carried out
in Knotts and that carried out in Ciraolo in terms of the positioning of
the police officer in a lawful vantage point.'
The Court found it significant that the police did not physically intrude
into Ciraolo's backyard in order to see its contents.67 Emphasizing the
absence of physical intrusion, the Court pointed out that the officers were
in public navigable airspace" and that "any member of the public flying
in this airspace" could have glanced down and seen what the police
officers saw.' The majority was unpersuaded by Justice Harlan's caveat
from his concurring opinion in Katz, cautioning that the fourth amendment
should not be limited to proscribing only those situations in which the
police have physically trespassed onto a defendant's property.' The majority
found Harlan's warning to be "plainly aimed" at future electronic developments and not at "simple visual observations from a public place." 7 '
Chief Justice Burger, writing for the majority, contrasted Ciraolo's
"unlawful activities" with Katz's act of entering the telephone booth with
the expectation that his words would remain private.72 The Court held
that Ciraolo was not "entitled to assume" that his unlawful conduct would
remain private and refused to extend fourth amendment protection to
Ciraolo's activities.73
B. Analysis of the Court's opinion in Ciraolo
In reaching its decision to deny Ciraolo's expectation of privacy, the
Court: (1) addressed the legitimacy of the privacy expectation in the
64. Ciraolo, 106 S.Ct. at 1812. The lawful vantage point from which police observed the suspect
in Knotts was outside the suspect's cabin. Knotts, 460 U.S. at 278.
65. Ciraolo, 106 S.Ct. at 1812.
66. Id.
67. Id. at 1813.
68. Id.
69. Id.
70. Id. See also Katz, 389 U.S. at 362.
71. Ciraolo, 106 S.Ct. at 1813. The majority's focus on electronic developments as the only
exception to the physical trespass limitation indicates an overly literal reading of Katz which relegates
the real issue, absence of physical trespass as a limitation on fourth amendment protection, to a
position of secondary importance. See infra text accompanying notes 126-33.
72. Ciraolo, 106 S.Ct. at 1813. Once again the majority referred to Ciraolo's activities as "illicit"
in an atttempt to create a significant difference between Katz and Ciraolo for the purpose of its
analysis. Id.
73. Id.
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context of the curtilage/open fields doctrine; (2) erroneously relied on
Knotts to expand a "public vantage point" exception to the protection
afforded the curtilage while ignoring crucial differences between Knotts
and Ciraolo; (3) acknowledged absence of physical trespass as important
to Fourth Amendment analysis despite earlier decisions which held otherwise; and (4) looked to the criminal conduct of the defendant in addressing
the reasonableness of his privacy expectation.
1. Legitimacy of the privacy expectation
The majority began its inquiry by questioning the legitimacy of Ciraolo's expectation of privacy.74 The Court focused on whether the fourth
amendment protects the curtilage from all intrusion, or whether the protection is conditional." The Court turned to Oliver v. United States76 for
its test of the legitimacy of Ciraolo's privacy expectation.77 In Oliver, the
Court determined the legitimacy of the expectation by asking whether
"the government's intrusion infringes upon the personal and societal
values protected by the fourth amendment."7 The Ciraolo Court acknowledged the heightened protection afforded the curtilage.79 The majority opinion also conceded that the area observed by the police was within
Ciraolo's curtilage.' Assuming that the privacy interest in the home and
curtilage is one of the legitimate personal and societal values protected
by the fourth amendment for the purpose of the Oliver legitimacy test,
the majority neglected to show exactly how Ciraolo's expectation of
privacy failed the legitimacy test and led to a denial of fourth amendment
protection.
The test from Oliver may be inadequate in cases involving the curtilage.
In Oliver, the Court rejected the notion of intent to conceal private activity
as a formulation of the test.8 The Oliver Court, however, determined
that the property in question was in open fields and not within the curtilage.8 2 The question, unaddressed in Ciraolo, is whether the Oliver test
would be applicable in a case where the property in question was clearly
within the curtilage. If the curtilage were the area in which one may
74. Id. at 1811.
75. Id. at 1812. Ciraolo argued that because the area observed by the police was within the
curtilage, no police observation was permissible. Id.
76. 466 U.S. 170.
77. Ciraolo, 106 S.Ct. at 1812.
78. Oliver, 466 U.S. at 182. The Court rejected defendants' argument that the expectation was
legitimate whenever the individual chose to conceal private activity. Id. The defendants had posted
"No Trespassing" signs and had fenced the field in which they were growing marijuana. Id. See
also supra text accompanying notes 49-57.
79. Ciraolo, 106 S.Ct. at 1812.
80. Id.
81. Oliver, 466 U.S. at 182.
82. Id.
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always entertain the most heightened expectation of privacy, then a test
developed in an open fields inquiry should consistently find that the
governmental intrusion infringed upon the personal and societal values
protected by the fourth amendment. To be consistent with the Court's
long-standing position that the area within the curtilage is inviolable,83
the test of legitimacy would only need to ascertain the locus of the activity
to determine whether it occurred within the curtilage. Upon a finding that
the area is within the curtilage, the expectation of privacy would necessarily be held to be legitimate.
2. The Court's reliance on Knotts
Based on existing fourth amendment analysis, Ciraolo's subjective
expectation of privacy in the activities taking place in his backyard seems
legitimate. The Court, however, held Ciraolo's expectation of privacy
unreasonable in part because Ciraolo's backyard was exposed to "public
view" from the air.84 The Court reasoned that because the police attained
a lawful vantage point, their view into Ciraolo's backyard from the air
did not constitute a search within the meaning of the fourth amendment.85
The majority relied on Knotts to support this proposition.8 6 Two significant
differences between the cases serve to undermine the Court's reliance on
Knotts: first, the nature of the surveillance was substantially different; 7
and second, the timing of the search warrants in relation to the surveillance
of home and curtilage was substantially different.88
83. See Hester, 265 U.S. at 58-59. See also Oliver, 466 U.S. at 180.
84. At no time does the Court equate the notion of "public view" with the "plain view" doctrine.
The plain view doctrine is discussed supra in text and accompanying notes 39 and 40. The "doctrine
authorizes seizure of illegal or evidentiary items visible to a police officer whose access to the object
has some prior fourth amendment justification and who has probable cause to suspect that the item
is connected with criminal activity." Illinois v. Andreas, 463 U.S. 765, 771 (1983).
85. Ciraolo, 106 S.Ct. at 1812. The Court noted that anyone flying over Ciraolo's home could
have seen what the officers saw and this fact seems to be the basis of the public vantage point
argument. Justice Powell, dissenting, found this reasoning to be "wholly without merit." Id. at 1818
n.8 (Powell, dissenting). Powell pointed out that people on commercial or private flights have only
fleeting opportunities to observe activity taking place within the curtilage of a home and that they
rarely associate what they see with a particular individual. Id. He also found fault with the majority's
disregard of the reasons for which most people fly in airplanes and the reasons the police used the
airplane on the occasion in question. Id.
The Ciraolo conclusion is based on a partial reading of the entire paragraph in Katz in which
Justice Stewart discussed public view. Katz, 389 U.S. at 35 1. Part of the paragraph in Katz supports
the proposition that public exposure is inconsistent with a claim of fourth amendment protection.
Id. However, the very next sentence in the same paragraph states, "what he seeks to preserve as
private, even in an area accessible to the public, may be constitutionally protected." Id. In Ciraolo,
the Chief Justice's public view argument prevailed. Yet Ciraolo never explicitly overruled or addressed
the majority opinion from Katz on the issue of public view and fourth amendment protection.
86. Ciraolo, 106 S.Ct. at 1812.
87. See infra text accompanying notes 89-100.
88. See infra text accompanying notes 101-25.
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CRIMINAL PROCEDURE
In Knotts, the police observed the suspect's car traveling over public
highways and utilized a beeper to track the location of a drum of chloroform to a particular house.8 9 At one time the officers trailing the suspect
broke off surveillance when the suspect began evasive action." A helicopter was then used to ascertain the physical location of the beeper once
it again became stationary.9" The remainder of the surveillance prior to
obtaining the search warrant involved observation of the house from the
outside.92
The Knotts court limited its holding to these particular circumstances
when it stated that at no time was the beeper used to "reveal information
as to the movement of the drum within the cabin, or in any way that
would not have been visible to the naked eye from outside the cabin." 9 3
In Knotts, the interior of the cabin represented the area deserving the
protection of the fourth amendment.' Finding the surveillance within the
bounds of the fourth amendment, the Knotts court emphasized that the
police never obtained information about activities occurring within the
cabin.95 From their public vantage point in Knotts the police did not
observe activities occurring in any area protected by the fourth amendment.
In Ciraolo the police also obtained information through naked-eye
observation.' That, however, is where the similarity with Knotts ends.
The purpose of the police surveillance in Ciraolo was visually to invade
the area within the curtilage of Ciraolo's property.97 The police in Ciraolo
made no effort to observe the outside of Ciraolo's house in order to obtain
further information. 9" Rather, they directly observed an area which, by
the Court's own admission, has traditionally been afforded the most
heightened protection under the fourth amendment." Most importantly,
the acts of the police in obtaining information about activities occurring
within the curtilage of Ciraolo's property went beyond the acts approved
by the Court's limited holding in Knotts. " So while the police in Knotts
may have indeed observed their suspect from a lawful vantage point, the
police in Ciraolocarried out a qualitatively different kind of search when
89. Knotts, 460 U.S. at 278-79.
90. Id.
91. Id.
92. Id.
93. Id.at 285.
94. Id.at 284-85.
95. Id.
96. Ciraolo, 106 S.Ct. at 1810-11.
97. Id.
98. Id.
99. Id.at 1812.
100. See supra text and accompanying notes 89-95.
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they flew into the air and looked down into Ciraolo's fenced backyard.
It is this difference which casts doubt on the support Knotts provides to
the majority opinion.
The second significant distinction between Knotts and Ciraolois in the
timing of the search warrants in relation to the observation of the home
and curtilage in each of the two cases. In Knotts, the police obtained a
search warrant prior to entering the cabin,'0 ' an area in which activities
enjoy the traditional expectation of privacy afforded a dwelling.' 2 The
police in Knotts supported the search warrant with information obtained
prior to any invasion of the interior of the cabin.' 03
In contrast, the police in Ciraolo obtained the warrant to search Ciraolo's home and seize the marijuana plants after looking into Ciraolo's
backyard. " Unlike the officers in Knotts, the police in Ciraolo acted on
nothing more than an anonymous tip and gathered information about
activities occurring in Ciraolo's backyard, an area having heightened
fourth amendment protection. " The police acted in the absence of a
search warrant when they flew over Ciraolo's house for the sole purpose
of looking into the curtilage. "oYet the Ciraolo majority opinion ignored
the considerable fourth amendment jurisprudence which addresses warrantless intrusions into the home.' 7
Warrantless intrusions into the home have been held to be unreasonable
searches and seizures under the fourth amendment, subject only to a few
well-defined exceptions."' The framers of the amendment included language which expressly identified the home as one of the entities especially
protected by the amendment."0 Thus, they recognized the importance of
keeping the home free from unreasonable governmental intrusions. Equally
important, the Court historically had extended fourth amendment protection to activities occurring within the curtilage, but not to those occurring
in open fields. ,' Through the incorporation of the framers' intent into the
common law, the presumptive inviolability of the home and of the area
101. Knotts, 460 U.S. at 279.
102. Id. at 282, 285.
103. Id. at 278-79.
104. Ciraolo, 106 S.Ct. at 1810-11.
105. Id.
106. Id.
107. See infra text accompanying notes 107-25.
108. Coolidge v. New Hampshire, 403 U.S. 443, 474-75 (1971) (plurality opinion). In Coolidge,
the Court held that the exceptions to warrantless intrusions into the home were based on the presence
of "exigent circumstances". Id. at 475. However, this exception is not applicable in Ciraolobecause
the State never claimed it acted pursuant to such exigent circumstances, nor did the majority indicate
that it was an issue.
109. U.S. CONST. amend IV.
110. See supra text accompanying notes 50-57.
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CRIMINAL PROCEDURE
within the curtilage has become a well established principle of fourth
amendment analysis. "'
The cases on warrantless intrusions into the home illustrate the Court's
traditionally high regard for the principle of the presumptive inviolability
of the home. 2 In Steagald v. United States, agents used an arrest warrant
for a third party as a pretext for entering an apartment belonging to persons
not named in the warrant. "3 After two searches of the apartment uncovered
cocaine and paraphenalia, the police obtained a search warrant for the
apartment and found a larger quantity of cocaine."' At trial, the police
claimed that they entered on the belief that the party named in the arrest
warrant was within the premises. "5 The Supreme Court reversed the
petitioners' convictions in the lower court on the grounds that the reasonableness of the officers' belief was never subjected to the "detached
scrutiny of a judicial officer" as required by the fourth amendment." 6
The Court emphasized the importance of a search warrant for invasions
of the home in Johnson v. UnitedStates. "7Justice Jackson wrote, "Crime,
even in the privacy of one's own quarters, is, of course, of grave concern
to society, and the law allows such crime to be reached on proper
showing.""The point at which the privacy interest yields to the right of
search is to be "decided by a judicial officer, not by a policeman or
government enforcement agent.""' 9
In Payton v. New York, 20 the Court held that a state statute authorizing
police to enter a private residence without a warrant to make a routine
felony arrest was unconstitutional. '' In Payton, the officers, acting with
.probable cause but without warrants, entered premises of the appellant
without consent.' 22 The Court used unequivocal language in discussing
the legitimate privacy expectation in the home: "The Fourth Amendment
protects the individual's privacy in a variety of settings. In none is the
zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual's home. .
.
. Absent exigent
Ill. Id.
112. See infra text accompanying notes 112-25.
113. 451 U.S. 204, 213 (1981).
114. Id. at 206-07.
115. Id. at 207.
116. Id. at 213. The Court held that the officers' arrest warrant served to protect the named
individual from an unreasonable seizure because of the scrutiny of the issuing magistrate. Id. The
warrant, however, did nothing to protect the occupants of the apartment from an unreasonable search
and seizure. Id.
117. 333 U.S. 10 (1948).
118. Id. at 13-14.
119. Id.
120. 445 U.S. 573 (1980).
121. Id.
122. Id. at 576.
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circumstances that threshold may not reasonably be crossed without a
warrant." "123
In each of the above cases the government committed a warrantless
intrusion into the home. In each of the cases, the Court emphasized the
special protection afforded the home under the fourth amendment. 124 In
cases such as Oliver and Ciraolo, the Court equated the activities occurring within the curtilage with those occurring in the home for the purpose
of fourth amendment protection.' 25 The Ciraolo court never brought into
question the continued vitality of the curtilage doctrine as it could have
done by expressly limiting the scope of the holdings in Hester and Oliver.
Rather, the Court sought to overcome the presumptive unreasonableness
of the police surveillafice by creating something called "public view"
and by erroneously relying on the holding and facts of Knotts to support
its decision. 126
3. The absence of physical trespass in the public view exception
One of the building blocks in the Ciraolocourt's "public vantage point/
public view" exception to the warrant requirement is that the police flight
over Ciraolo's backyard took place in a "physically non-intrusive manner. "' 21 In 1967 the court explicitly rejected this limitation on fourth
amendment protection in Katz v. United States. 28 Writing for the majority
in Katz, Justice Stewart rejected the technical trespass limitation and
broadened the scope of fourth amendment protection beyond the traditional concepts of property law. 29 He stated, ". . . the reach of that
Amendment cannot turn upon the presence or absence of a physical
intrusion into any given enclosure." 3 Justice Harlan concurred, stating
that physical trespass limitations on fourth amendment protection were
"bad physics as well as bad law.'' 3 ' The Katz court found no value to
the argument that warrantless searches were constitutionally more palatable merely32because the police employed the least intrusive means to
effect them.
The Ciraolo majority frequently invoked Katz in support of its position.
Yet it inexplicably relied on the absence of physical intrusion to render
123. Id. at 589-90.
124. See supra text accompanying notes 107-10.
125. See supra text accompanying notes 74-83.
126. Ciraolo, 106 S.Ct. at 1812-13.
127. Id. at 1813.
128. 389 U.S. 347, 353 (1967). See supra text accompanying notes 36-48 for a more thorough
discussion of Katz.
129. Id.
130. Id.
131. Id. at 362 (Harlan, J., concurring).
132. Id. at 356-57. Justice Stewart was not impressed with the notion of police restraint in obtaining
evidence without a warrant. Id. at 356. Katz mandated restraint in the form of a search warrant, to
be imposed by judicial officer, after detached scrutiny of the evidence supporting a finding of probable
cause. Id.
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CRIMINAL PROCEDURE
the police surveillance in Ciraolo acceptable under the fourth amend"' The Court did this in spite of
ment. 33
the fact that the physical trespass
limitation was put to rest in Katz, a case which is fundamental to modem
fourth amendment jurisprudence.' 34
4. The link between unlawful activities and a reasonable expectation
of privacy
The Chief Justice took great pains throughout Ciraolo to declare Ciraolo's activities "unlawful"' 35 and to incorporate this designation into
the Court's analysis of the reasonableness of Ciraolo's expectation of
privacy.' 36 The reasoning and the result in Ciraolo suggest that the reasonableness of one's expectation of privacy will be linked to whether the
observed activity was lawful or unlawful.' 37
In United States v. Jacobsen,38
' the Court rejected the proposition that
a warrantless search could retroactively be characterized as reasonable
simply because agents discover contraband after the invasion occurs.' 3 9
The requirement that a warrant be issued by a neutral magistrate upon a
showing of probable cause precludes a post hoc finding of unreasonableness simply because certain activity was later characterized as criminal. '" In Ciraolo, the majority did not address Jacobsen, nor did they
explain the significance of stressing the "illicit" characterization to Ciraolo's acts.
The police could not have known about the lawfulness of Ciraolo's
activities prior to their aerial search of his backyard. Should the unlawfulness of an activity become important in determining the reasonableness
of the privacy expectation, police would be inclined to search without a
warrant when unlawful activity is suspected rather than carry out further
surveillance in an effort to establish probable cause. The suspect would
thus be presumed guilty before any judicial officer has the chance to
determine whether probable cause exists. By labelling Ciraolo's conduct
unlawful in the context of determining fourth amendment protection, the
opinion suggested a new condition for situations in which police may
search without a warrant and in which persons may invoke protection
from unreasonable searches. "' At best, it is unclear to what extent a post
hoc finding of criminal activity will justify a warrantless intrusion by the
government.
133. Ciraolo, 106 S.Ct. at 1813.
134. Katz, 389 U.S. at 353.
135. Ciraolo, 106 S.Ct at 1811-13.
136. Id.
137. Id.
138. 466 U.S. 109 (1984).
139. Id.at 114.
140. Id.at 114-15. "The reasonableness of an official invasion of the citizen's privacy must be
appraised on the basis of the facts as they existed at the time that invasion occurred." Id.
141. Ciraolo, 106 S.Ct. at 1811, 1813.
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[Vol. 18
V. CONCLUSION
Ciraolo created exceptions to the heightened protection from warrantless governmental intrusion traditionally afforded the curtilage.' 42 Police
may now use airplanes to observe activities in backyards which they
could not observe at ground level.' 43 The Court held that as long as the
police are in public navigable airspace, they may observe activities occurring within the curtilage.'"
The Court also applied the "absence of physical trespass" limitation
on fourth amendment protection in arriving at this result.'45 The Court
held that the combination of "public vantage point" and lack of physical
intrusion created a constitutionally palatable police surveillance which
did not constitute a search under the fourth amendment.'" The Court's
holding diminished the amount of protection from governmental intrusion
one may expect in the curtilage and allows the state to carry out significant
intrusions into the private lives of its citizens. The Court reached its result
through a flawed fourth amendment analysis which looked to lack of
intrusiveness and the subsequent finding of criminal conduct by the defendant
in order to determine the reasonableness of a warrantless intrusion into
the area within the curtilage of a home. The Court used this approach to
establish that the intrusion was not excessive and, therefore, not a search
within the meaning of the fourth amendment. '47
Justice Bradley warned against reaching such a result through this kind
of inquiry in Boyd v. United States'48 more than 100 years ago:
It is not the breaking of his doors, and the rummaging of his drawers,
that constitutes the essence of the offence; but it is the invasion of
his indefeasible right of personal security, personal liberty, and private property .... It may be that it is the obnoxious thing in its
mildest and least repulsive form; but illegitimate and unconstitutional
practices get their footing in that way, namely, by silent approaches
and slight deviations from legal modes of procedure .... A close
and literal construction [of fourth amendment provisions] deprives
them of half their efficacy, and leads to gradual depreciation of the
ight, as if it consisted more in sound than in substance."' 9
GUY J. DICHARRY
142.
143.
144.
145.
146.
147.
148.
149.
Id. at 1812-13.
Id.
Id.
Id.
Id.
Id.
116 U.S. 616 (1886).
Id. at 630, 635.